Fabio Arcila Jr.

Touro College Jacob D. Fuchsberg Law Center

Expertise

Fourth Amendment search and seizure

Litigation

Courses/Seminars

Criminal Procedure

Civil Procedure

Honors & Awards

2010 James Madison prize from the Society for History in the Federal Government for excellence in an article or essay that deals with any aspect of the federal government's history, for The Framers’ Search Power: The Misunderstood Statutory History of Suspicion & Probable Cause, 50 Boston College Law Review 363 (2009)

Links

The Death of Suspicion

Fabio Arcila, Jr., Touro College

Abstract

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in which reasonableness serves as the constitutional touchstone for all governmental searches, and where neither warrants nor suspicion are primary mechanisms for protecting Fourth Amendment values. Therefore, new ways must be identified of assuring adequate Fourth Amendment protections. To that end some broad guidelines are offered.

Suggested Citation

Fabio Arcila, Jr.. "The Death of Suspicion" William & Mary Law Review 51.4 (2010): 1275-1341.
Available at: http://works.bepress.com/fabio_arcila/8